McGarry v The Queen

Case [1999] WASCA 276


McGARRY -v- R [1999] WASCA 276



SUPREME COURT OF WESTERN AUSTRALIACitation No:[1999] WASCA 276
COURT OF CRIMINAL APPEAL
Case No:CCA:2/19997 OCTOBER 1999
Coram:KENNEDY J
PIDGEON J
MURRAY J
6/12/99
24Judgment Part:1 of 1
Result: Finite sentence of 5 years' imprisonment reduced to 3 years
PDF Version
Parties:MICHAEL ALEXANDER McGARRY
THE QUEEN

Catchwords:

Criminal law and procedure
Sentencing
Indecent dealing with a child under 13 not involving touching
Three charges of personating a member of the police force in subsequently telephoning to home of victim
Record of previous sexual offences extending over 13 years
Whether sentence of 5 years to be served in part concurrently with a previous sentence excessive
Whether eligibility for parole should have been ordered
Whether indefinite sentence justified

Legislation:

Sentencing Act 1995, s 98

Case References:

Briginshaw v Briginshaw (1938) 60 CLR 336
Chester v The Queen (1988) 165 CLR 611
Clayden v The Queen, unreported; CCA SCt of WA; Library No 960268; 17 May 1996
Jones v The Queen, unreported; CCA SCt of WA; Library No 980246; 8 May 1998
Lowndes v R [1999] HCA 29, (1999) 163 ALR 483
Lowndes v The Queen (1999) 73 ALJR 1007
Powell v The Queen, unreported; CCA SCt of WA; Library No 950559; 19 October 1995
R v Dunstan, unreported; CCA SCt of WA; Library No 990074; 19 February 1999
R v Lowndes (1997) 95 A Crim R 516
R v Moffatt [1998] 2 VR 229
Thompson v R, unreported; CCA SCt of WA; Library No 980600; 19 October 1998
Thompson v The Queen [1999] HCA 43

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Batty v The Queen, unreported; CCA SCt of WA; Library No 980518; 14 September 1998
Bugmy v The Queen (1990) 169 CLR 525
Coulter v The Queen, unreported; CCA SCt of WA; Library No 960507; 4 September 1996
House v The King (1936) 55 CLR 499
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
R v Carr [1996] 1 VR 585
R v Chan (1989) 38 A Crim R 337
R v Cooper (1987) 30 A Crim R 19
R v Evans, unreported; CCA SCt of WA; Library No 920616; 24 November 1992
R v Gooch (1989) 43 A Crim R 382
R v Hodge (1987) 31 A Crim R 200
R v Hueston (1995) 83 A Crim R 53
R v O'Shea (1982) 8 A Crim R 219
R v O'Shea (No 2) (1997) 94 A Crim R 560
R v Podirsky (1989) 43 A Crim R 404
R v Read (1997) 94 A Crim R 539
Read v The Queen (1994) 3 Tas SR 387
Thompson v The Queen (1992) 8 WAR 387
Tunaj v R [1984] WAR 48
Veen v The Queen (1979) 143 CLR 458
Veen v The Queen (No 2) (1988) 164 CLR 465

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT :

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Details
AGLC
McGarry v The Queen [1999] WASCA 276
Case
[1999] WASCA 276
Decision Date

CaseChat Overview and Summary

The appellant was convicted of three charges of indecently dealing with a child under 13 years, not involving touching, and of three charges of personating a police officer in the course of the offending. He was also convicted of three previous sexual offences. The appellant was sentenced to a finite term of imprisonment of 5 years on the charges of personating a police officer, to be served concurrently with a previous sentence of 3 years for the sexual offences. The appellant sought leave to appeal against his sentence, contending that the sentence was excessive, that he should have been eligible for parole, and that an indefinite sentence should have been imposed.

The court considered whether the sentence of 5 years to be served concurrently with a previous sentence of 3 years was excessive, and whether the appellant should have been eligible for parole. The court noted that the appellant had a record of sexual offending over 13 years and that the offending was predatory in nature. However, the court also noted that the appellant had shown some remorse and had taken steps to address his offending. The court held that the sentence was not excessive and that the appellant should not have been eligible for parole. The court also held that an indefinite sentence was not justified.

The sentence of 5 years was reduced to 3 years. The court held that the sentence should be served concurrently with the previous sentence of 3 years. The appellant's application for leave to appeal was dismissed.

Orders

Orders of the court

Finite sentence of 5 years' imprisonment reduced to 3 years

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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